US v. Otilio Delgado, No. 10-4818 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4818 UNITED STATES OF AMERICA, Plaintiff Appellee, v. OTILIO DELGADO, a/k/a Tilo, a/k/a Otilio Nava, a/k/a Otilio Delgado-Nava, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:09-cr-00500-JFA-3) Submitted: July 21, 2011 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, July 25, 2011 and HAMILTON, Affirmed by unpublished per curiam opinion. Michael Chesser, Aiken, South Carolina, for Appellant. Stacey Denise Haynes, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Otilio Delgado pled guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute cocaine, crack cocaine, and marijuana, and illegal entry into the United States. The district court sentenced Delgado to a total of 135 months imprisonment, comprised of 135 months on the drug count and a concurrent 24 months on the illegal entry count. On appeal, Delgado s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are whether no meritorious Delgado s Neither Delgado issues sentence nor the for was appeal but questioning substantively Government has filed reasonable. a brief. We affirm. Delgado contends that the sentencing court placed too much weight on his repeated attempts at illegal entry and did not attribute factors. appropriate significance to other mitigating Delgado contends that the statutory mandatory minimum sentence of 120 months would have been more appropriate. When reviewing take into a sentence account the for substantive totality of the reasonableness, circumstances. United States, 552 U.S. 38, 51 (2007). within a properly-calculated 528 F.3d 210, 261 (4th Cir. Gall v. We accord a sentence Guidelines presumption of reasonableness. we range an appellate See United States v. Abu Ali, 2008). 2 Such a presumption is rebutted only by showing that the sentence is unreasonable when measured against the [18 U.S.C.A.] § 3553(a) [(West 2000 & Supp. 2011)] factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). After district reviewing court properly the record, analyzed the we conclude arguments that the presented by Delgado and appropriately imposed a sentence at the bottom of the Guidelines range. The court considered the mitigating circumstances raised by Delgado and relied on them in choosing the sentence. illegal However, the court also noted Delgado s repeated attempts to enter the country, as well as his participation in a conspiracy that involved guns and kilogram quantities of cocaine. Taking into account the totality of the circumstances and the court s explicit consideration of each of the § 3553 factors, we can find no abuse of discretion, and so, we conclude that Delgado s sentence is substantively reasonable. Pursuant to Anders, we have examined the entire record for meritorious appellate issues and found none. we affirm Delgado s convictions and Accordingly, sentence. This court requires that counsel inform Delgado in writing of his right to petition the Supreme Court of review. If Delgado requests the that United a States petition be for further filed, but counsel believes that such a petition would be frivolous, then counsel may motion this court 3 for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Delgado. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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